England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CANTERBURY COUNTY COURT
(HIS HONOUR JUDGE POULTON)

		Royal Courts of Justice Strand London WC2 Friday, 22nd June 2001

1. LORD JUSTICE JUDGE: This is an application by Mr Tracey to reinstate an appeal from the decision of His Honour Judge Poulton made on 3rd February at the Canterbury County Court after a hearing on 16th December 2000. The effect of the judge's decision was to grant a declaration to Mrs Woodman that the property formerly shared by the parties at St David's Road, Allhallows in Rochester was held in trust by Mr Tracey for them jointly. The judge gave permission to appeal after judgment had been given.
2. It is relevant to my decision that when the application was made to him for permission to appeal, he turned to counsel or solicitor for Mrs Woodman saying "It is not a wholly straightforward matter". She responded "Not a wholly straightforward matter, your Honour. I do concede that..". She then argued the matter and left the judge giving a short judgment on this aspect of the case saying:

"There ought to be leave to appeal here. I don't want to encourage anyone to appeal, nor do I want it thought, as it sometimes is, that when one gives leave to appeal it means you have some doubt about it. But I can see that this is a case both on whether or not the constructive trust arose and on the illegality point, which it might be reasonable to air in a Court of Appeal. I give leave to appeal."

3. In effect, therefore, on 3rd February the judge give a clear judgment against Mr Tracey but took the view that the issues raised before him merited consideration by this Court.
4. There was an application for permission to appeal unnecessarily, because permission had already been given, dated 20th April which on one view at any rate was out of time. The time issue, if an extension is needed, is reserved by Mrs Woodman and the issue of that extension will arise elsewhere. For my purposes I am concerned only with the reinstatement issue.
5. It is unnecessary to set out the history in any detail, but what happened was that on 6th September Master Venne's order stated:

"ON this case coming to this court for the Defendant to say why his application for an extension of time and... should not be dismissed for failure to follow the directions of the court

AND on the Defendant not being present or or represented..."

6. It was ordered that unless by 4.30 pm on 20th September 2000 appropriate bundles were filed ...

"then the Defendant's application will stand dismissed with costs without further order."

7. Subsequently, on 29th September following a letter from the solicitors for Mrs Woodman asking for costs of the defendant's application for an extension of time to set down an appeal and on the defendant "not complying with the order of 6 September 2000 the application being dismissed, it was ordered that costs should be paid to the claimant by Mr Tracey which was summarily assessed."
8. The litigation then proceeded at Medway County Court during November, and on 4th December Mr Tracey made the present application to reinstate. He explained that he needed to show Judge Caddick in writing that his appeal was reinstated by 12th December. Mr Tracey then said:

"When I filed my appeal papers they were before you. But I later found the papers sent are incorrect. I would like my appeal to be reinstated on the ground that I am not a solicitor and that these papers are not easy to understand. I can't afford to use solicitors any more."

9. As I understand it, on 19th December District Judge Caddick ordered that the property should be placed on the market for sale and identifying the asking price from the sale price. That order of the district judge has not as at today's date, according to what Mr Tracey tells me, been complied with in the sense that the property has not yet been sold. So it is still available and Judge Caddick's order has not yet taken effect.
10. Mr Tracey has given evidence before me on oath explaining his difficulties. I am prepared to accept in summary what he says, which was that he always intended to appeal, he anticipated that the whole question of his appeal would be dealt with by his solicitors. According to his account to me they did not. Indeed they did not really assist him at all because they believed that he owed them £500 pounds and until they were paid that £500 they were not prepared to release the papers. He then found himself as a litigant in person somewhat at sea in the way in which to conduct his appeal and hence the non-compliance with the orders made by the Court. He also tells me, although this was not on his oath that there were problems in the way in which the relevant papers were sent by the appeal office arriving rather than at his address or his solicitors' address at Mrs Woodman's address. I need not go into that any further.
11. It seems to me this is an appropriate case, the house not yet having been sold in which to order that the appeal should be reinstated. Therefore I make that order.
ORDER: Application for reinstatement allowed (Order does not form part of approved)